Transferring a property is not always about buying or selling on the open market. Sometimes you need to move ownership to a family member, add or remove a name from a title, restructure ownership for financial reasons, or deal with a property following a relationship breakdown or death.
Whatever the situation, each type of property transfer carries distinct legal requirements, stamp duty consequences, and potential Capital Gains Tax implications. Getting the right advice before you proceed is essential.
At Strictly Conveyancing, we have been handling all types of property transfers across NSW since 2006. We will advise you on your specific circumstances, manage the entire lodgement process, and make sure you know exactly what to expect before you commit.
Common Types of Property Transfer in NSW
Property transfers in NSW fall into several distinct categories. Each has different legal, stamp duty, and tax implications:
Transfer to a spouse or de facto partner. Adding a spouse or long-term partner to the title is one of the most common transfers. Depending on the nature of the relationship and whether any payment is involved, the transfer may be stamp duty free or attract a concession. De facto couples must generally have been living together for at least 2 years to qualify for a stamp duty exemption.
Transfer following separation or divorce. After a relationship breakdown, one partner often transfers their interest in the property to the other. Stamp duty is not payable on transfers between separating spouses or de facto partners, provided the transfer is made in accordance with a Consent Order or Binding Financial Agreement under the Family Law Act 1975. If a mortgage exists, it must be discharged and a new loan arranged in the receiving party’s name.
Transfer to children or other family members. Parents may wish to gift or sell a property to their children, either at market value or at a reduced price. These transfers are generally dutiable at full stamp duty rates, calculated on the higher of the contract price or market value. A formal property valuation by a registered valuer is required by Revenue NSW. A gift deed is required where no money changes hands.
“Love and affection” transfers. Adding a spouse’s name to the title following marriage is known as a “love and affection” transfer. Provided no money changes hands and the property is the matrimonial home, this type of transfer is generally exempt from stamp duty. A Transfer of Land form is prepared and lodged with NSW Land Registry Services.
Transfer to a trust or company. Transferring property from an individual to a family trust, unit trust, or company is a common estate planning strategy. These transfers are generally dutiable and may also trigger land tax implications. The structure of the trust and the nature of the transfer will determine the stamp duty position.
Transfer to a self-managed super fund (SMSF). Business real property may be transferred into a self-managed super fund under specific conditions set by the Australian Tax Office. These transfers involve complex stamp duty, land tax, and superannuation compliance requirements and require careful co-ordination between your conveyancer, accountant, and SMSF trustee.
Removing a deceased person from title. When a property owner dies, how the title is updated depends on how the property was held. If held as joint tenants, the surviving owner lodges a Notice of Death with NSW Land Registry Services and the property passes automatically. If held as tenants in common, a Transmission Application is required, and the deceased’s share passes according to their will or, if no valid will exists, under the rules of intestacy.
Joint Tenants vs Tenants in Common: Why It Matters
When two or more people own a property together, they hold it either as joint tenants or as tenants in common. This distinction has significant consequences for what happens to the property on death and how ownership can be transferred or dealt with during the owners’ lifetimes.
| Joint Tenants | Tenants in Common | |
|---|---|---|
| Ownership shares | Equal shares only | Can be unequal (e.g. 60/40) |
| On death | Survivor automatically inherits the other share (right of survivorship) | Deceased share passes via will or intestacy |
| Can sell your share independently? | No, must sever tenancy first | Yes |
| Appears in will? | No, bypasses will entirely | Yes, passes as part of estate |
| Common for | Married couples, domestic partners | Business partners, investors, blended families |
When transferring property, we will advise you on which ownership structure is appropriate for your circumstances and document it correctly in the Transfer form.
Stamp Duty on Property Transfers in NSW
Many property transfers in NSW attract stamp duty, even between family members. However, exemptions and concessions apply in a range of circumstances. The table below is a guide only. Your specific stamp duty position will depend on the details of your relationship, the property, and the consideration (money) changing hands.
| Transfer Type | Stamp Duty Position |
|---|---|
| Spouse addition: matrimonial home (love and affection) | Exempt: no stamp duty payable |
| Separation / divorce: per Family Law Act consent orders | Exempt: no stamp duty payable |
| De facto partner (2+ years cohabitation): residential property | Exempt: no stamp duty payable |
| Transfer to children or other family members | Dutiable: calculated on higher of price or market value |
| Gifting property to a third party | Dutiable: calculated on market value |
| Transfer to a family trust or company | Generally dutiable: seek specific advice |
| Transfer to SMSF (business real property) | Generally dutiable: complex rules apply |
| Deceased estate: beneficiary under the will | Concessional rate applies |
| Joint tenants: surviving owner (Notice of Death) | No stamp duty payable |
| Tenants in common: transmission to estate | Stamp duty may apply depending on beneficiary |
Note: Where stamp duty is dutiable, Revenue NSW requires a valuation from a registered property valuer. Stamp duty is calculated on the higher of the contract price or the market value as determined by the valuation. Always verify your position with a licensed conveyancer before proceeding.
Capital Gains Tax Considerations
Capital Gains Tax (CGT) is a federal tax administered by the Australian Taxation Office (ATO) that may apply when you transfer property for less than its market value, or as a gift. CGT is separate from stamp duty and applies to the transferor (the person giving up the property), not the recipient.
Key CGT points for property transfers in NSW:
- If you transfer a property for less than market value, the ATO will assess CGT as if you sold it at market value.
- Your principal place of residence (family home) is generally exempt from CGT if it has always been your primary home.
- Investment properties are not exempt. Transferring an investment property to a family member will trigger a CGT event.
- If you have owned the property for more than 12 months, you may be eligible for the 50% CGT discount.
- Transfers between spouses as part of a Family Law settlement may qualify for CGT rollover relief, deferring the CGT liability.
- Transfers into an SMSF are subject to specific CGT rules that depend on the type of asset and fund structure.
CGT can result in a significant tax bill if not anticipated. We strongly recommend obtaining advice from your accountant or tax adviser before proceeding with a transfer, particularly for investment properties and below-market transfers.
The Property Transfer Process in NSW
A typical property transfer in NSW involves the following steps:
Step 1: Initial advice and assessment We assess your specific circumstances, including the relationship between the parties, the property type, any existing mortgage, and the stamp duty and CGT position, before anything is prepared.
Step 2: Property valuation (if required) Where stamp duty is payable, Revenue NSW requires a valuation from a registered property valuer. We can assist you in arranging this.
Step 3: Prepare the Transfer document We prepare the Transfer of Land document (PEXA Form 01T), setting out the parties, the property, and the consideration.
Step 4: Stamp duty assessment We lodge the Transfer with Revenue NSW for assessment and assist with payment of any stamp duty payable. If an exemption applies, we prepare and lodge the relevant exemption application.
Step 5: Lender coordination (if mortgage exists) If there is a mortgage on the property, we co-ordinate with the existing lender, who must consent to the transfer or may require the mortgage to be discharged and a new loan arranged.
Step 6: Electronic settlement via PEXA All NSW property transfers are now lodged electronically through PEXA. We manage the lodgement process and confirm registration of the new title with NSW Land Registry Services.
Step 7: Title confirmed Once the transfer is registered, NSW Land Registry Services updates the Torrens Register to reflect the new ownership. We confirm registration to all parties.
Why Choose Strictly Conveyancing for Your Transfer?
- Trusted by NSW property owners since 2006, nearly two decades of transfer experience
- Licensed conveyancers handle your matter from start to finish, not clerks or junior staff
- Clear advice on stamp duty and CGT implications before you commit to anything
- Registered with PEXA for fast, secure electronic lodgement across all of NSW
- Over 340 five-star Google reviews from clients across NSW
- Fixed, transparent fees with a full quote provided before your matter begins
📞 Call us: (02) 9630 5553 📧 Email us: mail@strictlyconveyancing.com.au
Contact us for a no-obligation conversation about your property transfer. We will explain your stamp duty position, the process, and our fees before you proceed.